LINCOLN — Nebraska prison officials have declined to publicly identify the supplier of a new batch of lethal injection drugs they purchased to carry out the state’s first execution in 20 years.
Scott Frakes, director of the Nebraska Department of Correctional Services, recently denied a Nov. 10 public records request from The World-Herald seeking communications between his staff and the source who sold four execution drugs to the state.
Such documents “constitute attorney work product, are subject to attorney-client privilege, are not public records and/or are confidential and exempt from disclosure,” said a letter late last week from Dawn-Renee Smith, communications director for the Corrections Department.
The department has turned over similar documents in past years. Smith provided no explanation as to why the department now considers such records exempt from the Nebraska Public Records Act.
Corrections officials did release some inventory records and have previously said the drugs cost $10,500 and were obtained from a domestic supplier. In 2015, corrections officials spent $54,400 on lethal injection drugs that they never received from a broker in India, who in turn refused to refund the public funds.
The law exempts from disclosure the work product of an attorney and a public agency that flows from preparation for litigation. But the law also requires the department to describe the contents of the withheld records and specific reasons for the denial.
The prison spokeswoman declined Tuesday to answer follow-up questions seeking a more specific description of the records. Nor would she answer other questions intended to gain a better understanding of the department’s basis for denial.
The department withheld the same records sought independently by the ACLU of Nebraska. Danielle Conrad, the organization’s director, said she suspects that the department acted in “bad faith” by “falsely claiming” attorney-client privilege for all of the requested records.
She said that while Nebraskans have differing views on the death penalty, many across the political spectrum support governmental transparency.
“This is a shocking new low for the Department of Corrections and Nebraska’s proud tradition of open government,” Conrad said.
Taylor Gage, spokesman for Gov. Pete Ricketts, said the department cited a legitimate reason for withholding the records. And he defended the department’s track record of transparency.
“Among all state agencies and corrections departments nationally, it is arguably subject to the highest levels of scrutiny and transparency by the media, the Legislature and the public,” Gage said.
Late last year, the department sought to shield the identity of lethal drug suppliers when it proposed changes to Nebraska’s execution protocol. But that provision was dropped after it was opposed by many of the people who testified at a public hearing on the protocol.
The new death penalty procedure approved by the governor in January added a pharmacist or pharmaceutical chemist to the execution team. That person’s role, the procedure says, shall be to deliver the lethal injection drugs to the execution chamber.
One of the state laws cited in the department’s denial letter says the identities of execution team members are confidential. That raises a question as to whether the department considers its drug supplier a member of the team.
State lawmakers debated a bill last session that would have exempted records about lethal drug suppliers from the public records law. Legislative Bill 661 did not come to a vote and could be taken up again after the Legislature convenes in January.
State Sen. John Kuehn of Heartwell, the sponsor of the bill, said he had not seen the department’s basis for declining the records requests. But he argued that the state’s primary obligation should be to properly test the drugs and share the test results with lawyers for the condemned inmates.
“What value does the identity of the manufacturer of the drug provide?” he asked.
Earlier this month, the department announced that it had obtained four drugs for the execution of death-row inmate Jose Sandoval, the ringleader of a botched robbery in 2002 that left five people dead in a Norfolk bank.
The department notified Sandoval on Nov. 9 that it intends to use four drugs in the following order: diazepam, fentanyl citrate, cisatracurium besylate and potassium chloride.
Under the protocol, the Attorney General’s Office may not ask the Nebraska Supreme Court to issue a death warrant for Sandoval sooner than 60 days after the notification.
Death penalty opponents have predicted that legal challenges over Nebraska’s untried lethal drug combination will lead to further delays.